March 24, 2009

My wife, who I consider a good lawyer and I totally disagree on the way the public outcry has been unleashed against some executives at AIG and other organizations. She holds to the belief that this “bonus money” is her tax dollars and these people don’t deserve to be paid with her money. I get the frustration, but my point is why does this “say on pay” deserve to be different than an individual shareholder’s opportunity to control the way corporations incentivize and pay their executives? In my view it doesn’t.

I have never been in favor of say on pay by shareholders or God forbid the Government. Shareholders have the right to make their feelings heard but most are not qualified to make decisions for the organization. Shareholder say on pay should remain a vote with their feet or their proxy statements. In my last installment I said that boards have to step up, dig in and bring some collective sensibility to this process. I think it is also time for shareholders to step up, dig in and remove some board members. Some of these directors also need to be thanked for their meritorious service and sent to permanent retirement not just shuffled to the next board.

I believe that the world has to hold Board of Directors to an increased level of accountability. Boards (not shareholders) have the obligation to understand what it takes to hire and incentivize key executives. Boards (not shareholders) are empowered to set reasonable and appropriate incentive targets – regardless of the number of trailing zeros. We have a governance system that has worked for more than 100 years, but greed and lack of accountability has diluted its value. And what is this silly tax idea??? Simply stated, boards must return to accountability for executive compensation so that is ensures that all the organization’s stakeholders get rewarded.

So what do you think government’s or a shareholder's role should be on “say on pay”?

March 22, 2009

I have tried to stay on the sidelines because a number of people are blogging about the AIG bonus issue, but I can’t contain myself any longer. This is likely to be part one of a three or four part series, because this issue, in my opinion, is much larger than just the public’s reaction to these bonus payments.

First, no one that earned and received these bonuses at AIG is guilty of anything. They did their job and deserved to be rewarded for their efforts based on contractual agreements. So I am not only saddened but ashamed of the blame game behavior of both the liberal and conservative news media and a number of very ignorant protestors camping out on AIG executive’s lawns.

If you have never worked in a variable compensation model it is impossible to understand the pressure of carrying a quota or delivering the next great source of new revenue. Therefore, targeting these very blue collar individuals to interview on TV just makes the situation worse.

So, if these executives aren’t to blame then who is? It is a long list – the senior executives who built the compensation models, followed by the compensation committee and the board of directors for AIG that approved them. Next in line is the US Government for not being proactive in evaluating and better adjusting or confirming these bonuses when AIG first was asking for money. Congress comes next for not reading Dodd’s language – which expressly allows for the bonuses to be paid. Finally this is just another faux pax by the Obama administration. The President’s Chief of Staff needs to clean house of their PR and protocol staff because their actions and mistakes in the first 60 days of this administration are comical to the point of being criminal.

Do I think that all these multi-million dollar bonuses that a number of companies that took bailout money are fair or justified, no I don’t. But that isn’t the question on the table. If these payments were being decided in a court of law, not a court of public opinion, there isn’t a case to be made that these should not be paid. The Constitution, if it made it to the Supremes would also support payment.

The real conversation should be about Board accountability and “Say on Pay.” For the moment I am going to concentrate on accountability and will save comments on say on pay until my next installment.

President Obama’s reaction to AIG bonus payments isn’t the first time has echoed the public’s outrage. Most American’s felt pretty much the same way when executives on Wall Street and executives from bailed out banks received significant year-end bonuses and other compensations. The President followed up with a “close the barn doors after the cows are in the pasture” $500,000 salary freeze for executives of organizations that take new Federal funds. If I am to believe CNN the average American thinks a $500,000 salary package is unbelievable – almost immoral.

So how much is a CEO worth? In this silly quarter to quarter world we live in they seem to be worth a lot for what seems to be very little sustained performance. If there are “criminals” in this process it is the compensation committee chairs and boards that approve these crazy compensation plans. Incentive compensation is all about moving the needle. If as a CEO I can show growth, profitability, new market expansion, or ?? to improve my company’s share value and sustainability I am worth a lot, and no one should complain because by moving the needle every stakeholder of the company is getting rewarded. But let’s get serious, the transactions and deal sizes have gotten crazy and justification of paying a small “percentage” of the deal is ludicrous. Don’t misunderstand me, I get hard work, creativity and value and don’t balk at million dollar plus bonuses – but $20 million? Boards have to step up, dig in and bring some collective sensibility to this process.

March 18, 2009

With the passage of the American Recovery and Reinvestment Act of 2009 (ARRA), commonly known as the Stimulus Act, $500,000,000,000 (sorry I just wanted to type all those zeros) is now being moved into employers across a wide spectrum of industries to stimulate our economy.

If you work for or run an organization that is in defense, education, energy, environmental cleanup, government technology, healthcare, housing, hunger assistance, infrastructure projects, scientific research or transportation you are first in line for these funds.

That is the good news. The bad news is that within the Act is the McCaskill amendment which significantly broadens the scope of whistleblowing and puts EVERY EMPLOYER at serious risk.

The Amendment to the Act does not cover Federal Employees (they have the Whistleblower Protection Act), but is extended to all private employers and state and local governments, including their contractors and subcontractors, who receive Stimulus funds. This means if I get ARRA funds and I hire you as my contractor, and you hire a sub-contractor(s) to complete the project – every organization in this chain is accountable to the McCaskill amendment.

The Act significantly expands the whistleblowing provisions defined under SOX includes “internal disclosures, including disclosures made by employees in the ordinary course of performing their job duties.” Attorneys Allen Roberts and Frank Morris of EpsteinBeckerGreen did a great job of detailing this act and I encourage you to review their whitepaper.

I hope you are listening. This means that not only should every employer have a methodology to support anonymous reporting, but they need a methodology to document, classify, escalate and otherwise track issues brought forward which would be considered relevant information through an “open door policy.” Here are the “violation types” or talk tracks specifically identified:

Gross mismanagement of an agency contract or grant relating to Stimulus funds,

Gross waste of Stimulus funds,

Substantial and specific danger to public health or safety related to the implementation or use of Stimulus funds,

Abuse of authority related to the implementation or use of Stimulus funds, or

Violation of law, rule, or regulation related to an agency contract or grant awarded or issued to Stimulus funds.

This law puts the responsibility firmly on the employer as there does not need to be a preponderance of evidence of retaliation, in fact it can be circumstantial. Therefore, the employers should implement and consistently follow procedures that document their actions during and post receipt of any disclosure.

Should employers retaliate against the "whistleblower," the action is swift and significant. The Office of the Inspector General is bound by the Act to review and make a determination within 30 days of the validity of the claim. If the claim is deemed valid, the Act requires the IG’s office to make a determination within 180 days. The complainant is entitled to reinstatement, back pay, compensatory damages, attorneys’ fees, and if warranted exemplary damages. If it goes to trial the complainant is entitled to a jury trial and the Act specifically removes any employer right to arbitration.

Finally there is no preemption to this Act, so States have the option to add to this Act if they feel it “necessary.” So over time this could be become very messy.

The bad news isn’t over yet. Everyone is waiting for Health and Human Services to promulgate the Act’s requirements for changes in HIPAA privacy regulations. When they do I will let you know the risks and requirements.

Full Disclosure – EthicsPoint is a market leader in Hotline/Helpline & Issue Management market. We will no doubt benefit from the passage of this legislation, but my intent is not to encourage or scare you into purchasing products and services from our company. My concern is one of big government, that in my opinion, just got a lot bigger and the downstream risks to smaller private employers in the Stimulus Act are significant.

March 9, 2009

Yesterday morning I honored my daughter’s wishes and attended the performance of the church bell choir she to which she belongs and loves. At the end of the week I didn’t have any intention of attending services but took one for the team, letting my wife and other daughter stay home to work and study, to hear our oldest daughter play the bells.

When I looked at the bulletin I saw that the homily was to be delivered by a Franciscan Monk. I can’t say that I was excited about the prospect. A number of years ago I spent some time in study of the Franciscan Order hoping to improve the work / family balance in my life. I sincerely admire their Order and mission of personal peace and harmony with the world around us. But after taking a vow of silence and spending two days in a monastery setting without speaking a word I knew that I am not cut out for the Franciscan lifestyle.

Much to my surprise and delight the homily was not only topical and insightful but also uplifting. The jist of his message was examining the difference between the “Contract God” we imagine and the “Covenant God” that spoke to Abraham.

This caused me to think about my own management style and the way in which I deal with people and provide stewardship for my family. Without a doubt I live a contract driven life. I will give or reward you with this, if you are successful in providing that. Get good grades, get a car. Drive revenue and get a promotion, more pay and more recognition. Work hard, save money to your 401K, be prudent with your investments and you will be rewarded with monetary security and someday retirement – oops.

What happened to my contract? Given the recent sub-prime and other implosions the global economy my 401K, as I was reminded during the homily, has been reduced to a 200 1/2K.

The homily went on to describe God’s covenant relationship with Abraham. This is a great story regardless of your religious persuasion. Imagine being a 99 year old guy that God taps on the shoulder and says “time to get started.” But this “mission” wasn’t (according to the Friar’s homily interpretation) a contract to go and build a nation, but rather a covenant of unconditional trust, expectation and hope.

While I it is unlikely I will shift completely away from my contract roots, I hope that I can translate some of this teaching into the way I interact and support my team and family. I have always strived to deliver integrity in my “contracts.” During these uncertain times, I want to find a fitting level of integrity as I set clear expectations, trust in the commitment and abilities of the people we have chosen and trained, and inspire hope for the future.

March 2, 2009

When retiree Phyllis Molchatsky filed suit in NY against the SEC in December 2008 for failing to protect investors I just looked at it as going after the deepest pockets. But after watching the 60 Minute segment on Sunday night I think she may be justified in pointing the blame their direction.

In the CBS interview, Harry Markopolos was asked how many times he sent materials to the SEC. Markopolos calmly responded, "May 2000. October 2001. October, November, and December of 2005. Then again June 2007. And finally April 2008. So five separate SEC submissions."

Markopolos is not superman, he is a 52 year-old accountant who said he was able to see that something was wrong in minutes and it only took him 2 hours of study to prove it. He went on to say that the SEC was full of lawyers who were great at scrutinizing documents, but were not trained or capable of identifying fraud.

A few weeks ago I was watching the news where a congressman asked if they could bring the regulators associated with the issue into the hearing room. When asked why, he responded because “I want to tell them they suck at their job!”

It seems that the SEC does suck at its job. There is no shortage of litigation around the Madoff matter. My question is can and should the SEC and its regulators be held directly liable for failing to protect shareholders?